Missouri governor’s criminal trial proceeds in darkness

May 11, 2018 11:00

By Dan Shelley, RTDNA Executive Director

Update: On May 14, St. Louis prosecutor Kim Gardner dropped charges against Gov. Greitens after being called to testify in his trial. She vowed to refile the charges, But Greitens — who still faces possible impeachment by the Missouri Legislature — declared victory.
If you believe, as I do, The Washington Post’s masthead slogan – “Democracy Dies in Darkness” – then you must realize that democracy is fading right now in the state of Missouri.

And you should be very concerned.

Gov. Eric R. Greitens is currently on trial in St. Louis facing felony invasion of privacy charges that allege he took semi-nude photos of his then-mistress in 2015 – before he was elected – without her knowledge. The governor has acknowledged the affair but has pleaded not guilty to the criminal complaint.

Greitens also faces a second felony charge, for which he will be tried later, related to his alleged illegal use of a charitable donor list to raise money for his 2016 campaign.

Although Greitens is the 54th governor in Missouri’s history as a U.S. state, which dates back to 1821, he has the distinction of being the first to find himself this close to impeachment by the Missouri Legislature. Some Republican legislators tried to impeach Democratic Gov. Jay Nixon a few years ago, but the motion never made it out of committee.

Last month, ahead of the governor’s current criminal trial, RTDNA joined a coalition of news media organizations – led by Meredith Corporation, whose St. Louis television station, KMOV, originally broke the Greitens story – to file a motion asking the judge presiding over the case, the Hon. Rex Burlison, to allow cameras and microphones in the courtroom so the people of Missouri could see and hear for themselves what was occurring.

On May 3, Burlison summarily denied our request and subsequently issued a set of onerous rules restricting news media access to Greitens’ trial. Under those rules, no more than 24 journalists may be in the courtroom at any given time, the remainder relegated to an “overflow room,” as space allows, where they have to view the proceedings on closed-circuit TV.

Even more disappointing is that Burlison’s rules allow no more than 60 members of the general public, to be determined by a daily lottery, into the courtroom. None of the more than 6.1 million other Missourians will have any direct access to the trial whatsoever.

All of this seems even more absurd when you consider the fact that Missouri is one of 34 states that allow – presume, even – the presence of cameras and microphones in most courtrooms. It has been such a state since 1995, as dictated by the Missouri Supreme Court’s Administrative Rule 16. I was a working journalist in Missouri in 1995 and served as the media coordinator for a state appeals court. I know first-hand the system can work, serving the interests of the public and protecting the interests of all parties involved.

To be fair, the governor’s former mistress, who is the victim of the alleged crime, has expressed reticence at having her testimony broadcast for fear her identity be revealed, and Missouri’s rules do provide a mechanism to prevent electronic media coverage of such victims – but only those victims, not the entire trial. For the record, the news media consortium RTDNA joined to seek broadcast coverage of Greitens’ trial had agreed not to broadcast images of the woman.

Judge Burlison’s denial of any broadcast coverage of the governor’s first criminal trial continues an unfortunate pattern of darkness in the Greitens case. It began when a special Missouri House of Representatives committee formed to investigate allegations against the governor decided, contrary to RTDNA’s request, to conduct all of its proceedings in secret, even though it had been authorized to hold its meetings in public.

All of this begs the question of whether, or to what degree, Greitens’ constituents will be able to see and hear impeachment proceedings should they occur.

The Missouri Constitution, in Article VII, Section 1, states, “All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”

Under established procedures, last used to remove former Missouri Secretary of State Judith Moriarty from office in 1994, the House must vote to approve articles of impeachment, which then go before the state Senate. In the case of impeachment articles targeting a governor, senators would then appoint a “special commission…composed of seven eminent jurists” to hear the case.

If at least five of the seven jurists – who must be either circuit or appeals court judges from throughout the state of Missouri – vote for conviction, the governor would be removed from office; the lieutenant governor would then take his place.

Many legal and legislative observers in Missouri presume that impeachment proceedings would be held in public. However, the state constitution appears to make no presumption either way.

Whether or not you are a journalist in Missouri, I advise you to pay close attention to how developments unfold there. RTDNA is deeply involved, precisely because what happens in the Show-Me State could have implications for future cases of alleged high crimes and misdemeanors across the country.

To put it another way, if democracy dies in darkness in Missouri, what’s to stop it from dying throughout the nation?